Why The DMCA Is An Unconstitutional Restriction On Free Speech

from the notice-and-takedown-this dept

Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced -- though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).

But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it's still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

I'm sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it's a really strong point. The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government. It does make you wonder if a compelling First Amendment case could be made around this particular issue.

Reader Comments

Re: Re: Re: Re: Key phrase

I understand what you're saying, and for the record I'm not a fan of the DMCA.

My argument is that it's not a constitutional restraint because it's not the ISP's free speech. It's the individual's free speech. And, from a rights perspective, the individual's rights aren't being restricted because the individual can host the content themselves. The ISP isn't required to host the content in regards to the first amendment. The ISP chooses to host content for its customers, but when the ISP is made aware that content it hosts violates the law then the ISP chooses to remove the content.

Let's draw a comparison. Should the WikiLeaks site be allowed to host its content on ISP servers in the U.S.? For example, some of the content includes classified information which is illegal to provide without proper credentials. Is it a violation of the first amendment to require the ISP to remove the classified documents?

The DMCA requires ISPs to remove content when it receives a notice from the copyright owner that the content infringes (i.e. breaks the law). Essentially, if an ISP knowingly hosts content that infringes on copyright then it can be liable. If the law (again, as it is written) allowed the content to stay up until a court decided that it infringed, then it would severely limit the effectiveness of the law.

The law is about liability for hosting the content. An ISP generally has no reason to care whether the content infringes or not. It just employs the processes set forth in the DMCA - take it down when you receive a notice of infringement, and then put it back up when you receive a counter notice of non-infringement.